Chief justice leads Supreme Court through tempered term

Roberts firmly establishes himself as fulcrum of the court

A man wearing a Trump 2020 mask checks his phone outside of the US Supreme Court in Washington on Thursday. (Caroline Brehman/CQ Roll Call)
A man wearing a Trump 2020 mask checks his phone outside of the US Supreme Court in Washington on Thursday. (Caroline Brehman/CQ Roll Call)
Posted July 10, 2020 at 5:01am

The Supreme Court emerged from its term Thursday as a steadying force for a country deeply split along partisan lines and rocked by a pandemic, with conservative Chief Justice John G. Roberts Jr.’s fingerprints on almost all the moves.

That wasn’t expected. The question at the beginning of the term in October was just how far the court would move in a conservative direction, with President Donald Trump’s two appointees and some potentially blockbuster cases on contentious issues such as abortion, immigration, LGBT discrimination and the president himself.

Then the House in December made Trump only the third president to be impeached. Roberts presided over Trump’s acquittal in February during a monthlong Senate trial. Then, just weeks later, the novel coronavirus closed up the Supreme Court building along with most of the country.

In late May, as the court finalized many of its most high-profile rulings, the killing of George Floyd by a Minneapolis police officer sparked weeks of civil rights protests that intensified the rhetoric around the reelection bid of a historically unpopular president.

By the last decision on Thursday, the court had avoided some of the biggest blockbuster rulings that some had predicted.

“It’s fair to say the blood pressure’s already very high, and the Supreme Court, and in particular John Roberts, made a decision not to push it any higher,” said Joshua Matz, a partner at Kaplan Hecker & Fink who was a clerk for retired Supreme Court Justice Anthony M. Kennedy.

Fulcrum of the court

Roberts, who has talked about his overriding concern to use his perch as chief justice to maintain the legitimacy of the court as nonpartisan, joined the four justices of the court’s liberal wing in surprising ways in some of the most contentious cases. Those decisions sometimes simply pushed the issue off for another time, but he still drew sharp criticism from conservatives.

In the end, Roberts fully established himself as the fulcrum of the court. He was in the majority for 97 percent of the cases, said Adam Feldman, a Supreme Court scholar who runs Empirical SCOTUS, which analyzes data for insights into the justices.

The only other justice during Roberts’ tenure to be on the winning side that often is Kennedy, who was considered the court’s swing vote until he retired in 2018. The last time a chief justice was in the majority that frequently was in the 1940s, Feldman said.

Roman Martinez, a Supreme Court litigator at Latham & Watkins law firm and a former law clerk for Roberts, called that run in the majority “remarkable.”

“It’s really the chief’s court,” Martinez said. “In the big and contentious cases, he’s deciding which way they get resolved, and then he’s also deciding how broad or narrow they are.”

In one such 5-4 decision, Roberts decided to strike down a Louisiana law to regulate abortion clinics as too similar to a Texas law the court had ended just four years earlier — much to the annoyance of Republicans who will continue to push to trim or overturn constitutional protections for abortion.

“It perpetuates bad precedent while barely bothering to explain why,” Missouri Republican Sen. Josh Hawley, a former Roberts clerk, tweeted. “It is a big-time wake up call to religious conservatives. We must make our voices heard.”

But his ruling also left the door open for other states to enact laws that affect abortion rights.

In a different 6-3 opinion, Roberts and Justice Neil M. Gorsuch joined the liberal wing to extend broad federal workplace protections to gay, lesbian and transgender employees — something that was included in a Democratic bill passed last year but had stalled in the Republican-led Senate.

And in another 5-4 decision, Roberts rejected the Trump administration’s push to end an Obama-era program that gives nearly 700,000 so-called Dreamers the ability to work in the United States and avoid deportation. The end result was that tough-on-immigration Trump would have to try again.

Texas Republican Sen. Ted Cruz, who has argued before the Supreme Court, on the Senate floor called the decision “lawless” and “disgraceful” and said Roberts joining the liberals on the court “is becoming a pattern.”

“Everyone knows the game they are playing. They are hoping that in November, in the election, that there is a different result in the election, that there is a new administration that comes in that decides amnesty is a good thing,” Cruz said. “And so this sleight of hand is all about playing policy.”

‘Not super predictable’

Those decisions resisted major shifts in the nation’s legal landscape. The Dreamers who were brought to the country illegally as children can stay and work, for now. Abortion rights stay the same, for now.

On gun rights, the Supreme Court’s first foray into the Second Amendment in nearly a decade fizzled this term when the justices sent a case back to a lower court without ruling on the merits of a now-defunct New York City gun law.

And on the last day, the justices, in a case about whether the Democrat-led House can subpoena Trump’s personal and business records from an accounting firm and two banks, punted the issue back to lower courts. The subpoenas can’t be enforced, for now.

The court passed on an opportunity to shake up the Electoral College system and so-called “faithless electors” who vote contrary to the results of their state’s popular election.

There were some decisions, however, that conservatives could cheer. The court ruled that Congress went too far when it tried to ensure the independence of the Consumer Financial Protection Bureau in response to the 2008 financial crisis.

The court sided with Montana parents who wanted to use a state tax credit program at a private, religiously affiliated school, a decision that will allow states to set up such programs even if their state constitution bans aid for churches and religious schools. The justices also sided with religious schools when it comes to employment discrimination laws for teachers.

And the court upheld two Trump administration rules that would expand the types of employers that could be exempt from covering contraception under their health plans.

“I think that what you saw in general in the court is that it’s not super predictable,” Martinez said.

The court, over the summer, could face a new set of partisan challenges as states and political parties fight over absentee ballots, polling places and other changes to elections because of the coronavirus pandemic.

And next term, starting in October, the court already has major cases on its docket, including the Trump administration’s argument that the Supreme Court should strike down the 2010 health care law.

Time will tell if the justices can reopen the building and hold oral arguments in person again instead of over the phone, as they did in April and May of this term because of the pandemic.

But that audio facilitated questions from a broader range of justices, most notably Justice Clarence Thomas, and allowed an online livestream where everyone could hear the work of the court.

“Having the ability of the American people be able to tune in and listen to what’s going on, I think is a valuable thing,” Martinez said.